Tag Archives: DUI

DUI, Beer, Car Keys

Medical Experts Clash in Aggravated Vehicular Homicide Hearing

Medical experts clashed in a pretrial hearing for Zackery Brown, 22, who faces charges of aggravated vehicular homicide and operating a motor vehicle while intoxicated.

The Crash

On November 10, 2016, a tragic accident occurred on state Route 115, three miles south of the Putnam County line in Ohio. Zackery Brown, drove off the right side of the road, flipped over, and struck a tree on the passenger side of the vehicle. Brown’s friend, Brenden Wale, was in the passenger seat. Wale was found dead at the scene. Brown and Wale were students at University of Northwestern Ohio.

The responding officer, Ohio State Highway Patrol Trooper Michael Kinsinger, reported that Brown smelled of alcohol, had bloodshot, glassy eyes, and was stumbling around at the scene of the accident. Brown told Kinsinger that he was the driver and that he had consumed two beers before the crash. Brown said that another vehicle was driving toward him in his lane and that he had to swerve off the road to avoid crashing when the vehicle did not move back to its lane. Kinsinger reported that there was no evidence to show that another vehicle was involved in the crash.

Expert Witnesses

Brown was indicted on two counts of aggravated vehicular homicide and two counts of operating a vehicle under the influence of alcohol. The charges carry a maximum penalty of eight years in prison.

Prosecutors presented a report from Dr. Robert Forney, the chief toxicologist with the Lucas County Coroner’s Office. Forney reported that Brown’s blood alcohol content at the time of the crash was at least 0.086 grams per deciliter. Forney’s analysis was based on a blood sample obtained from Brown nearly three hours after the accident. Forney explained that he used a process called retrograde extrapolation, where forensic scientists work backward from a point in time to establish the level of intoxication in an individual.

Defense attorneys filed a motion and challenged Forney’s conclusion and methodology. They presented their own expert witness, Dr. Robert Velloto, who testified that he was trained in clinical pharmacology and has a master’s degree in pharmaceutical chemistry. Prosecutors challenged Dr. Velloto’s qualifications, but Judge Jeffrey Reed allowed Velloto to testify as an expert witness. Velloto opined that Forney’s report was based on assumptions rather than fact and stated that he did not believe in retrograde extrapolation at all.

Retrograde Extrapolation Accuracy

Retrograde extrapolation in determining blood alcohol concentration is based on the assumption that people eliminate alcohol at a fixed rate of between 0.01 grams and 0.02 grams per deciliter of blood per hour. For a retrograde extrapolation calculation to be valid, a person must metabolize alcohol at the normal rate and the person must be in the postabsorption phase, which typically occurs 15 to 90 minutes after a person’s last drink.

A person’s absorption rate will vary depending on many factors, including the type of food eaten, type of alcohol consumed, and the length of time during which the drinking occurred. It is precisely because retrograde extrapolation is uncertain that blood alcohol test results are only presumed to be valid if the blood sample is drawn within three hours after the test subject was driving. The longer the delay in obtaining a test sample, the more speculative the examiner’s conclusions are likely to be.

Don't drink and drive concept. Close up of man hand drinking beer and holding car keys. Responsibly and safety driving

Senior Criminalist Angela Stroman Gave Testimony in DUI Case

Senior Criminalist Angela Stroman gave testimony about blood alcohol levels in a DUI trial against Michael Matthew Montoya in Yolo County, California.

The Crash

Michael Matthew Montoya was celebrating Davis’ Picnic Day 2015. He consumed 6 beers at the event and drove away in a black Honda that he later crashed. Montoya told Yolo County Sheriff’s Deputy Robert Harbaugh that his girlfriend had been driving, but she left the scene to get her father. Witnesses, however, said that she was not driving.

Deputy Harbaugh described Montoya as “unsteady, had bloodshot eyes and smelled of alcohol.” According to Deputy Harbaugh, when Montoya’s girlfriend arrived back at the scene, Montoya asked repeatedly to leave and made an attempt to walk over to her, pushing aside another officer who had arrived. After Montoya attempted to walk over to his girlfriend, he was handcuffed and placed in the deputy’s car.

Montoya claimed to have only consumed six beers at the event. By 3:53pm, Montoya’s blood alcohol level was 0.178 (reported in the linked press account as 1.78, a blood alcohol content that no living person could attain). Montoya was charged with a misdemeanor DUI along with enhancements for excessive blood alcohol levels.

DUI Law in California

In California, if there is no bodily injury or death caused by the DUI, the minimum sentence for a misdemeanor first conviction are fines and penalties of approximately $1,800, 48-hour jail sentence or 90-day license restriction, attendance and completion of a $500, three-month alcohol-treatment program, and loss of driving privileges for at least 30 days.

The maximum penalty for a first DUI conviction in California is a fine of $1,000, over $2,600 in penalties, six months in jail, a six-month license suspension (10 months if your blood alcohol level was 0.15{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} or more), having your vehicle impounded for 30 days, and being required to attach an “interlock” breath device to your vehicle that will not allow it to start if there is alcohol on your breath.

Montoya’s Trial

Montoya’s attorney, Deputy Public Defender Aram Davtyan, asked the jury to give Montoya the “presumption of innocence” and argued that his client had not been driving the car.

Montoya’s blood alcohol level was an issue at trial. In many DUI trials, attorneys question the accuracy of in-field testing processes. Angela Stroman was called as an expert witness on blood alcohol levels. Stroman is a Senior Criminalist with the United States Department of Justice.

Stroman explained how every individual is different and that many factors are taken into account when determining the stages of intoxication, “A lot depends on how much alcohol is in one drink, ounces and a person’s body weight, contents of the stomach and body chemistry…there are several factors we look at.”

Stroman explained that a blood alcohol of .04 is the first stage of intoxication and at this level, a person could drive home safely. Stroman testified that when a person’s blood alcohol level reaches .08, the majority of people will experience an impairment of vision, reflexes, judgment, and clarity. Stroman explained that sometimes a person’s blood alcohol level can rise over time because of the way that the alcohol is absorbed in the body.